Archive for August 13th, 2005

I’ve received a flood of queries concerning my previous post about the courageous Virginia judge’s ruling that the presumption of guilt in DUI cases is unconstitutional. Perhaps the following examples, which I’ve used in past lectures, will help clear up the confusion about the presumption of innocence and the burden of proof…

Imagine the following scenarios from three separate criminal trials:

1. Burglary. Police find fingerprints at the scene of the crime. The prosecution introduces evidence that they match the defendant’s fingerprints. The judge then instructs the jury that, based entirely upon that evidence, the defendant is presumed to be guilty and that they must convict him — unless he can prove his innocence.

2. Forgery. The prosecution offers evidence that the forged handwriting is that of the defendant. The judge instructs the jury that he is presumed by law to be guilty — unless he can prove he is not.

3. Drunk driving. The prosecution produces evidence of a breathalyzer test that the defendant’s blood-alcohol level was over .08%. The judge instructs the jury that they must convict him (of both driving under the influence and driving over .08%) — unless he can prove he is innocent.

In the first two cases, the convictions would immediately be reversed on appeal — and the judge probably castigated for both shifting the burden of proof from the government to the defendant and violating his presumption of innocence. The Virginia judge is simply saying that the third case should be no different.